Probate

A will is a legal document and it is essential that it is drawn up correctly. While it is not a legal requirement to use a solicitor, it may be advisable to do so, especially if the situation is complex. If the value of an estate is above the threshold for inheritance tax, a professional adviser may also be able to help with tax or estate planning.

Will writing kits are available and there are many companies who offer will writing services.

Key Points

Only a valid will – can ensure that after death all possessions will be allocated in line with the deceased person’s wishes.

No will means the property of the estate will have to be distributed in line with the rules of intestacy. Intestacy rules stipulate clearly who can inherit from an intestate estate, so money and possessions may then not be distributed as the deceased may have wished. This particularly applies to unmarried couples who cannot usually inherit from each other without a will.

A will may also instruct the executor about the funeral requirements/service etc and who will be responsible for paying the estate’s debts and taxes. Furthermore, it may nominate someone to act as guardian to any children left by the deceased.

Formalities

Problems may arise after the person’s death if a will does not comply with the formal, legal requirements. This can result in distress and possibly expensive legal wrangling among family or friends.

For a will to be valid, it must be in writing. It must also have been made without influence or duress from others. At the time of writing the will the person making the will must be at least 18 years of age (or over 12 years old if in Scotland) and of sound mind.

A will must be signed by the person making the will and it needs to be witnessed. In England, Wales and Northern Ireland two witnesses are required whereas only one witness is required in Scotland. A witness of a will cannot benefit from it.

There also must be a separate clause that states the circumstances in which the will was witnessed and signed.

The will does not have to name the executor whose role it will be to ensure that the details of the will are adhered to. However, it is advisable to appoint an executor at this stage to avoid any future confusion or dispute. Up to four people can act as executors of one will.

Probate/Confirmation

The executor must obtain legal authorisation before the estate can be dealt with. Probate (Confirmation in Scotland) is the formal legal process that allows the estate of the person that has died to be released. The probate/confirmation document gives the personal representative, usually the executor of the will, legal authority to deal with the deceased person’s affairs. The executor may deal with these affairs themselves or decide to appoint an agent on their behalf; if this is someone other than a solicitor, they must be a member of a professional body approved by the Department for Constitutional Affairs.

If there is a will, the executor will have to apply for probate/confirmation. In England and Wales, if there is no will or the will has been found invalid, the probate registry will issue letters of administration.

There are strict rules about who can be the administrator of a will:

In England, Wales and Northern Ireland, there is an order of priority which applies to the married partner and family of the deceased.

In Scotland, an executor usually must be appointed in court unless the value of the estate is relatively small. The court would normally appoint the surviving spouse as executor. If there is no surviving spouse, a strict order of preference is applied starting with any children.

In the event of any problems with the actions of a personal representative, it will be advisable to discuss these issues and any possible legal action with a solicitor. In England, Wales and Northern Ireland a person with interest in the estate can apply to the probate office for a citation. Courts have the power to pass over or remove an executor or other personal representative; for example, if the executor is bankrupt.

In Scotland, once an executor has been appointed by the court, they cannot resign or appoint somebody else as executor without going back to court.

If a bank or solicitor is acting in the role of a professional personal representative, anybody with an interest in the estate will have recourse to the appropriate complaint’s procedures.